As former commissioners on the Federal Election Commission with almost 75 years of combined experience, we believe that the bill proposed on April 30 by Sen. Chuck Schumer and Rep. Chris Van Hollen to "blunt" the Supreme Court's decision in Citizens United v. FEC is unnecessary, partially duplicative of existing law, and severely burdensome to the right to engage in political speech and advocacy.

Moreover, the Democracy Is Strengthened by Casting Light On Spending in Elections Act, or Disclose Act, abandons the longstanding policy of treating unions and businesses equally, suggesting partisan motives that undermine respect for campaign finance laws.

At least one of us served on the FEC at all times from its inception in 1975 through August 2008. We are well aware of the practical difficulties involved in enforcing the overly complex Federal Election Campaign Act and the problems posed by additional laws that curtail the ability of Americans to participate in the political process.

As we noted in our amicus brief supporting Citizens United, the FEC now has regulations for 33 types of contributions and speech and 71 different types of speakers. Regardless of the abstract merit of the various arguments for and against limits on political contributions and spending, this very complexity raises serious concerns about whether the law can be enforced consistent with the First Amendment.

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Martin Kozlowski .Those regulatory burdens often fall hardest not on large-scale players in the political world but on spontaneous grass-roots movements, upstart, low-budget campaigns, and unwitting volunteers. Violating the law by engaging in forbidden political speech can land you in a federal prison, a very un-American notion. The Disclose Act exacerbates many of these problems and is a blatant attempt by its sponsors to do indirectly, through excessively onerous regulatory requirements, what the Supreme Court told Congress it cannot do directly—restrict political speech.

Perhaps the most striking thing about the Disclose Act is that, while the Supreme Court overturned limits on spending by both corporations and unions, Disclose seeks to reimpose them only on corporations. The FEC must constantly fight to overcome the perception that the law is merely a partisan tool of dominant political interests. Failure to maintain an evenhanded approach towards unions and corporations threatens public confidence in the integrity of the electoral system.

For example, while the Disclose Act prohibits any corporation with a federal contract of $50,000 or more from making independent expenditures or electioneering communications, no such prohibition applies to unions. This $50,000 trigger is so low it would exclude thousands of corporations from engaging in constitutionally protected political speech, the very core of the First Amendment. Yet public employee unions negotiate directly with the government for benefits many times the value of contracts that would trigger the corporate ban.

This prohibition is supposedly needed to address concerns that government contractors might use the political process to steer contracts their way; but unions have exactly the same conflict of interest. So do other recipients of federal funds, such as nonprofit organizations that receive federal grants and earmarks. Yet there is no ban on their independent political expenditures.

Disclose also bans expenditures on political advocacy by American corporations with 20% or more foreign ownership, but there is no such ban on unions—such as the Service Employees International Union, or the International Brotherhood of Electrical Workers—that have large numbers of foreign members and foreign nationals as directors.

Existing law already prohibits foreign nationals, including corporations headquartered or incorporated outside of the U.S., from participating in any U.S. election. Thus Disclose does not ban foreign speech but speech by American citizen shareholders of U.S. companies that have some element of foreign ownership, even when those foreigners have no control over the decisions made by the Americans who run the company.

For example, companies such as Verizon Wireless, a Delaware corporation headquartered in New Jersey with 83,000 U.S. employees and 91 million U.S. customers, would be silenced because of the British Vodafone's minority ownership in the corporation. But competing telecommunications companies could spend money to influence elections or issues being debated in Congress.

The new disclosure requirements are unnecessary, duplicating information already available to the public or providing information of low value at a significant cost in reduced clarity for grass-roots political speech. In many 30-second ads, Disclose would require no fewer than six statements as to who is paying for the ad (the current law already requires one such statement). These disclaimers would take up as much as half of every ad.

The Disclose Act also creates new disclosure requirements for nonprofit advocacy groups that speak out. These groups already have to disclose their sponsorship, but Disclose requires them to go further and provide the government with a membership list. This infringes on the First Amendment rights of private associations recognized by the Supreme Court in NAACP v. Alabama. Groups can avoid this only by creating a new type of political action committee called a "campaign related activities account."

The result of these overly complex and unnecessary provisions is to force nonprofits to choose between two options that have each been found unconstitutional by the Supreme Court: Either disclose their members to the government or restrict their political spending to the campaign related activities account. This runs contrary to the explicit holding in Citizens United that corporations (and unions) may engage in political speech using their general treasuries.

These requirements will be especially burdensome to small businesses and grass-roots organizations, which typically lack the resources for compliance. So the end effect of all of this "enhanced disclosure" will be to ensure that only large corporations, unions and advocacy groups can make political expenditures—the exact opposite of what the sponsors claim to desire.

While the Disclose Act does include an exemption for major media corporations, it does not include websites or the Internet, which means the government can regulate (and potentially censor) political dialogue on the Web. Additionally, the law would require any business or organization making political expenditures to create and maintain an extensive, highly sophisticated website with advanced search features to track its political activities.

As a result, small businesses, grass-roots organizations, and union locals that maintain only basic websites would be discouraged from making any expenditures for political advocacy, because doing so would require them to spend thousands of dollars to upgrade their websites and purchase software to report information that is already readily available to the public from the FEC. Large companies and unions could probably meet this requirement, so once again the bill benefits large, institutional players over small businesses and grass-roots organizations.

The Disclose Act's abandonment of the historical matching treatment of unions and corporations will cause a substantial portion of the public to doubt the law's fairness and impartiality. It makes election law even more complex, more incomprehensible to ordinary voters, and more open to subjective enforcement by those seeking partisan gain.

St. Louis University Public Law ReviewGun Control Symposiumvol 18, no. 1, 1999: 13.Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.

THE HERITAGE OF OUR RIGHT TO BEAR ARMS

REPRESENTATIVE CLIFF STEARNS *

There is an old adage that says you need to look where you have been to learn where you are going. I believe that it is helpful, and sometimes necessary, to review the issues of the day through a political and historical perspective ¾ looking where we have been. Such a linear approach adds context to a discussion, providing an understanding as to why a sound policy in the past may or may not remain so today. This is especially applicable to the topic of this paper.

Posted By Erin Miller On June 1, 2010 @ 2:03 pm In 30 Days of Stevens | Comments Disabled

The following essay, one of the final ones for our John Paul Stevens series, was written by Cliff Sloan [1]. Sloan clerked for Justice Stevens during the 1985 Supreme Court Term, and is now a partner at Skadden, Arps, Slate, Meagher, & Flom.

Justice John Paul Stevens is the greatest Justice in Supreme Court history.

I say this, not as hyperbole, but as a reflection of the record he has compiled in his thirty-four and one-half years on the Court. It is a description warranted by his vast influence over wide swathes of the law, especially those that go to the heart of our constitutional democracy. His contributions to our jurisprudence are profound, and will endure. And I say “greatest,” not just “great,” because even our most storied Justices have not compiled a record that rivals or surpasses Justice Stevens’ record.

At the outset, one clarifying point about the frame of reference. I am excluding Chief Justices from the comparison, for they have powers unavailable to Associate Justices. This principle, of course, takes John Marshall, Earl Warren, and the other Chiefs out of consideration.

Justice Stevens is the greatest Justice for at least four reasons. First, his record of protecting and maintaining the rule of law during the “war on terror” stands unique in Supreme Court annals. He wrote two of the three seminal decisions squarely rejecting the government’s deprivation of legal rights at Guantanamo (Rasul v. Bush and Hamdan v. Rumsfeld), and he was a key member of the five-Justice majority in the third decision of this extraordinary trilogy (Boumediene v. Bush). His galvanizing role in these cases, reaching back to his experience as a law clerk in the 1947 Term, has been well-chronicled [2]. At other times in our nation’s history, when confronted with claims of wartime authority, the Supreme Court has flinched (as in Korematsu). Under Justice Stevens’ leadership and opinions, the Court did not flinch. Instead, it stood powerfully for legal protections, even in a time of great national fear and anxiety. That achievement alone may establish Justice Stevens’ role as the greatest Justice. But it is far from his only accomplishment.

Second, Justice Stevens has fundamentally changed – and strengthened – the Court’s jurisprudence regarding personal freedom. As Jamal Greene has detailed in these pages [3], Justice Stevens has successfully re-framed the Court’s conceptual framework for personal freedom from a general “privacy” right, which is not mentioned explicitly in the Constitution, to a “liberty” right, which is prominently and explicitly protected in the Constitution. This re-orientation is more than a matter of nomenclature or constitutional tidiness. It has shifted the protection of personal freedom to a more secure and durable foundation. Not coincidentally, Justice Stevens’ corresponding impact on the protection of liberty has been enormous. To use a well-known example, Justice Stevens’ dissent in Bowers v. Hardwick, in which he disagreed with the Court’s acceptance of a criminal ban on homosexual conduct and emphasized “the abiding interest in individual liberty,” became the law of the land in Lawrence v. Texas. Justice Kennedy’s opinion for the Court in Lawrence explicitly adopted Justice Stevens’ dissent as the basis for overruling Bowers: “Justice Stevens’ analysis . . . should have been controlling in Bowers and should control here.” The remarkable seventeen-year arc of that dissent, and the more general re-fashioning of the Court’s framework from a privacy foundation to a liberty foundation, are historic triumphs. (Full disclosure: as a law clerk, I worked with Justice Stevens on his Bowers v. Hardwick dissent.)

Third, Justice Stevens has steadfastly sought to enforce the rule of law even when the Presidency hangs in the balance. His memorable dissent in Bush v. Gore excoriated the Court for failing to respect the orderly process of the Florida courts. In exactly the same vein, just a few years earlier, his often-maligned and misunderstood opinion in Clinton v. Jones stressed the orderly process of the federal courts, and rejected President Clinton’s claim that the Paula Jones lawsuit should be deferred until the expiration of his term. No other Justice has a comparable record of leadership in vigorously enforcing the rule of law against Presidents in both parties.

Fourth, Justice Stevens has powerfully re-shaped the law in an astonishing range of areas. Several examples tell the tale. His decision in Chevron v. NRDC is, quite simply, the foundation of modern administrative law. His landmark opinion on free speech and the internet, Reno v. ACLU, is justly known as “the magna carta of cyberspace.” His 1984 decision in Sony v. Universal City Studios, holding that sale of the videocassette recorder did not constitute copyright infringement, unleashed an era of technological innovation. His 2005 decision in Massachusetts v. EPA, ruling that the EPA could regulate greenhouse gases and that Massachusetts could sue the EPA for failing to do so, is the most important environmental decision in a generation. His opinion in Gonzales v. Raich, upholding Congress’s power to ban state authorization for the medicinal use of marijuana, is a seminal explication of Congress’s powers under the Commerce Clause. Justice Stevens’ opinions often have been a beacon for state courts, as Rory Little has explained [4] in the context of prosecutorial misconduct. On virtually every legal issue, Justice Stevens’ contribution has been enormous and far-reaching.

The case for Justice Stevens as a great Justice thus seems to me overwhelming. But the very greatest? Recognizing inevitable subjectivity in the evaluation, I think that a comparison of Justice Stevens’ record with the record of other contenders for the honor establishes Justice Stevens’ pre-eminence.

To my mind, five other Justices plausibly could be considered for the “greatest” laurel: Brandeis, Holmes, Brennan, Story, and the first Justice Harlan. Although all five are great Justices, they fall short of Justice Stevens in their accomplishments and their impact on the Court.

Without a doubt, Louis Brandeis was a giant in the law. For the purpose of this comparison, it is necessary to consider only his record as a Justice, and not to include his substantial additional contributions as the “People’s Lawyer” before he joined the Court. Brandeis’ record on the Court is dazzling and impressive. He was a powerful voice for vigorous First Amendment protections in the years following World War I; he stood strongly for deference to federal and state legislation at the height of the Court’s Lochner era (as in his famous deference to states as laboratories of experimentation in his New State Ice Co. v. Liebmann dissent); and he laid the groundwork for modern Fourth Amendment jurisprudence (in his Olmstead v. United States dissent, later embraced by the Court in Katz v. United States). This is unquestionably a formidable legacy. But, even giving Brandeis’ record its due, it does not match Justice Stevens’. Brandeis, for example, has no success comparable to Justice Stevens’ in leading the Court to enforce the rule of law in time of war. Nor do his opinions dominate in as many areas of the law as Justice Stevens’ opinions.

With his pithy aphorisms and confident turn of mind, the iconic Oliver Wendell Holmes is the most quotable Justice. But that does not make him the greatest. His record in opposing the Court’s Lochner jurisprudence, including his famous dissent in Lochner itself (“the Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics”) is significant and enduring. So too are his contributions to modern First Amendment doctrine (even while recognizing that they seem to have resulted, at least to some degree, from Brandeis’ influence after he joined the Court). But, again, Holmes’ role in leaving an actual body of law and doctrine does not rival or exceed Justice Stevens’. Moreover, it must be recognized that Justice Holmes, in upholding forced sterilization in Buck v. Bell, wrote one of the most noxious opinions in the Court’s history. (Holmes: “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. . . .Three generations of imbeciles are enough.”). It cannot be excused by saying that he was a product of his time. Greatness in a Justice lies in transcending the mistaken pressures of presumed exigencies, as Justice Holmes did on other occasions. Holmes’ Buck v. Bell opinion is an indelible blot on his record.

The jovial architect of the Warren Court, William J. Brennan, certainly left a far-reaching legacy. His opinions for the Court in areas such as the First Amendment (New York Times v. Sullivan), the right to vote (Baker v. Carr), congressional power (Katzenbach v. Morgan), and due process protections for recipients of government benefits (Goldberg v. Kelly) comprise an exceptional contribution. But, impressive as his opinions are in these and other areas, Justice Brennan’s glittering record also has its limits. After the Warren Court, and particularly in his last decade on the Court, he sometimes was marginalized (even while managing occasionally to cobble together majorities). Indeed, according to Joan Biskupic’s biography of Justice Sandra Day O’Connor, Brennan quickly alienated Justice O’Connor with intemperate attacks and a differing style and approach. Additionally, Brennan’s dominant judicial philosophy perhaps can be viewed as “five-ism” (in light of his famous statement that “you can do anything around here with five votes”). It is a philosophy less durable than Justice Stevens’ record as the embodiment of the “rule of law” Justice — enforcing the rule of law even-handedly in time of war, against Presidents of both parties, and in a wide variety of contexts.

Joseph Story was one of our most brilliant Justices. His three-volume Commentaries on the Constitution was the premier constitutional treatise of the nineteenth century. Story’s output for the Court, however, was relatively sparse, although it did include his opinions in Martin v. Hunter’s Lessee and the Amistad case. This relative paucity of major opinions was due in large part to the fact that Story served on the Marshall Court for most of his career, and John Marshall wrote almost all of the momentous opinions himself. Some observers have concluded that Story had a significant impact on Marshall’s opinions. But Story’s own opinions do not establish a compelling claim to the “greatest Justice” mantle.

Finally, the first Justice Harlan leaves an impressive record, if for no other reason than that he was the lone dissenter in Plessy v. Ferguson. Harlan had other powerful dissents as well, such as in The Civil Rights Cases and in Lochner. But he does not leave a body of work that compares to Justice Stevens’ record.

John Paul Stevens will leave the Court as the second oldest Justice to serve and as either the second or third longest-serving Justice (depending on when the Court rises this Term). Far more important than either of these distinctions, however, is that he will leave the Court as its greatest Associate Justice.

Justice Stevens wrote the opinion Kelo v. New London that takes a situation where the constitution explicitly prohibits the government from entry, search or seizure and gives them the right to bulldoze it and gift the property title to a new, more affluent owner.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause..." - 4th amendment to the U.S. constitution.

In the war on terror example Stevens sought to tie the hands of the Commander in Chief in a time of war and national emergency and in a situation where no prisoners were injured and culturally sensitive meals were ordered by inmates off of a menu.

In Bush v. Gore, the majority correctly noted that the U.S. Constitution gave the authority in question specifically to the "State Legislature" of Florida, not to the state in general and not to the Florida court to strike down or make new law where they may have a better idea or believe the Legislature to have erred. Stevens dissented.

"His 2005 decision in Massachusetts v. EPA, ruling that the EPA could regulate greenhouse gases and that Massachusetts could sue the EPA for failing to do so, is the most important environmental decision in a generation"

Yes, the federal government gained a new means to stop manufacturing, limit unnecessary drives to visit Grandma and keep a watchful government eye over exhaling.

For Justice Stevens, I agree with the two word title of the following piece: Good Riddance!-------------------------------

When Supreme Court Justices retire, there is usually some pious talk about their "service," especially when it has been a long "service." But the careers of all too many of these retiring jurists, including currently retiring Justice John Paul Stevens, have been an enormous disservice to this country.

Justice Stevens was on the High Court for 35 years-- more's the pity, or the disgrace. Justice Stevens voted to sustain racial quotas, created "rights" out of thin air for terrorists, and took away American citizens' rights to their own homes in the infamous "Kelo" decision of 2005.

The Constitution of the United States says that the government must pay "just compensation" for seizing a citizen's private property for "public use." In other words, if the government has to build a reservoir or bridge, and your property is in the way, they can take that property, provided that they pay you its value.

What has happened over the years, however, is that judges have eroded this protection and expanded the government's power-- as they have in other issues. This trend reached its logical extreme in the Supreme Court case of Kelo v. City of New London. This case involved local government officials seizing homes and businesses-- not for "public use" as the Constitution specified, but to turn this private property over to other private parties, to build more upscale facilities that would bring in more tax revenues.

Justice John Paul Stevens wrote the Supreme Court opinion that expanded the Constitution's authorization of seizing private property for "public use" to seizing private property for a "public purpose." And who would define what a "public purpose" is? Basically, those who were doing the seizing. As Justice Stevens put it, the government authorities' assessment of a proper "public purpose" was entitled to "great respect" by the courts.

Let's go back to square one. Just who was this provision of the Constitution supposed to restrict? Answer: government officials. And to whom would Justice Stevens defer: government officials. Why would those who wrote the Constitution waste good ink putting that protection in there, if not to protect citizens from the very government officials to whom Justice Stevens deferred?

Justice Stevens wrote the opinion Kelo v. New London that takes a situation where the constitution explicitly prohibits the government from entry, search or seizure and gives them the right to bulldoze it and gift the property title to a new, more affluent owner.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause..." - 4th amendment to the U.S. constitution.

In the war on terror example Stevens sought to tie the hands of the Commander in Chief in a time of war and national emergency and in a situation where no prisoners were injured and culturally sensitive meals were ordered by inmates off of a menu.

In Bush v. Gore, the majority correctly noted that the U.S. Constitution gave the authority in question specifically to the "State Legislature" of Florida, not to the state in general and not to the Florida court to strike down or make new law where they may have a better idea or believe the Legislature to have erred. Stevens dissented.

"His 2005 decision in Massachusetts v. EPA, ruling that the EPA could regulate greenhouse gases and that Massachusetts could sue the EPA for failing to do so, is the most important environmental decision in a generation"

Yes, the federal government gained a new means to stop manufacturing, limit unnecessary drives to visit Grandma and keep a watchful government eye over exhaling.

For Justice Stevens, I agree with the two word title of the following piece: Good Riddance!

DougMacG, My comment was meant to be tongue in cheek. My apologies for not making that clear. I do not think, however, the JPS is due as much ire as Sowell sends his way. Kelo was wrongly decided, in my opinion, but the matter was largely addressed at the state level. Moreover, the issue at hand was the Fifth Amendment's taking clause, not the Fourth Amendment as you suggest. (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=04-108).

The Bill of Rights exists, as you and Sowell correctly note, as a check on the government. A speedy trial is among those rights, and since the Framers had just come out of a war, I feel prety confident they knew what they were doing by taking steps to ensure that right.

The thing that always struck me as odd with Bush v. Gore is that the justices seemed to switch arguments. The liberals became state rights advocates and the conservatives were concerned about the individual right to vote. Of course, the Constitution also sends the outcome of the election, in the event that no one wins a majority of the electoral votes, to the House.

"The thing that always struck me as odd with Bush v. Gore is that the justices seemed to switch arguments. The liberals became state rights advocates and the conservatives were concerned about the individual right to vote."

My Constitutional law prof at Columbia was Ruth Bader Gingsberg and I will vouch for this. I remember disagreeing with her over National League of Cities v. Usery. Bush v. Gore was the first time in her life she ever gave a rat's tail about States' Rights especially with regard to voting rights!

I followed Bush v. Gore QUITE closely. I read the statute in question. I watched the oral arguments in front of the Fl Supreme Court. I read serious legal analysis. In my opinion, the greatest lack of intellectual integrity was shown by the FL Supremes and IMO the case was decided correctly on the merits by the US Supremes.

Thanks Crafty for followup on Bush v. Gore. Thanks and welcome to bigdog!

"My comment was meant to be tongue in cheek... Kelo was wrongly decided..."

Whew! I'm usually on the other side of that with people not getting my humor. 5 Justices and plenty of other people think the Kelo decision is okay, so that view would be interesting to debate as well. I hope my strong reaction came across as civil. Kelo is personal for me. I have my life savings invested in property and have had property taken under the same circumstances by the City of Minneapolis. My current home of 24 years is extremely vulnerable to the Kelo rule as well. Don't be fooled by the 5th amendment: "...nor shall private property be taken for public use, without just compensation". If they were willing to pay market price where buyers and sellers come together voluntarily, they wouldn't have to 'take' it.

"the issue at hand was the Fifth Amendment's taking clause, not the Fourth Amendment as you suggest"

You are correct on the first part, the issue was the takings portion of the 5th. I am just saying that the restrictions in the 4th on the limits of even entering the property make the stretched interpretation of the 5th, going from public use to private use, absurd.

Sowell's central point rings true to me, that public use as the justification does not round down to calling it a public purpose if the city council decides to have someone other than you build for private use on your legally purchased site. And that having the municipality determine the worthiness of the purpose defeats the purpose of limiting their power. To me the private use takings mock the meaning of the whole constitution and the process of interpreting it. You put it nicely: "wrongly decided". An understatement I think, but those too are strong words. Too many wrong decisions about limits of government power and those limits as we knew them become mere memories IMHO.

Thanks Crafty for followup on Bush v. Gore. Thanks and welcome to bigdog!

"My comment was meant to be tongue in cheek... Kelo was wrongly decided..."

Whew! I'm usually on the other side of that with people not getting my humor. 5 Justices and plenty of other people think the Kelo decision is okay, so that view would be interesting to debate as well. I hope my strong reaction came across as civil. Kelo is personal for me. I have my life savings invested in property and have had property taken under the same circumstances by the City of Minneapolis. My current home of 24 years is extremely vulnerable to the Kelo rule as well. Don't be fooled by the 5th amendment: "...nor shall private property be taken for public use, without just compensation". If they were willing to pay market price where buyers and sellers come together voluntarily, they wouldn't have to 'take' it.

Thank you for the welcome, DogMacG. (And thank you, Guro Crafty, for the nice introduction.) I find Kelo interesting on many levels, not the least of which is the takings clause was the section of the BoR incorporated to the states. Talk about stepping away from history!

The Liberal Mythology of an “Activist” Court: Citizens United and LedbetterPublished on June 15, 2010 by Robert Alt and Hans von SpakovskyAbstract: Liberals are currently engaged in a concerted effort to redefine judicial activism. Rather than accepting the true definition of judicial activism—when a judge applies his or her own policy preferences to uphold a statute or other government action which is clearly forbidden by the Constitution—liberals now apply the term anytime a statute is struck down or when a court delivers an unfavorable decision. This new tactic is on full display in the Left’s response to two major Supreme Court cases: Citizens United v. FEC and Ledbetter v. Goodyear Tire & Rubber Co. Yet, the facts of these cases and an examination of the legal analysis applied by the justices in their majority opinions show that there is no merit to any of these claims. Such cynical and derisive attacks are unfair to the justices who participated in these decisions and injure the public’s faith and confidence in the judicial system.Judicial activism—real judicial activism—occurs when judges write subjective policy preferences into their legal decisions rather than apply the Constitution according to its original meaning or statutory law based on its plain text. Judicial activism may be either liberal or conservative; it is not a function of outcomes, but one of interpretation. Judicial activism does not necessarily involve striking down laws, but may occur when a judge applies his or her own policy preferences to uphold a statute or other government action which is clearly forbidden by the Constitution.Dissatisfied with this accepted definition, liberals have engaged in a concerted effort to redefine judicial activism downward. Under one such formulation, judicial activism occurs anytime that a statute is struck down.[1] In another popular version, judicial activism is all but meaningless—a term of derision that means little more than “I don’t like the policy outcome of this decision.” Both definitions of judicial activism are incorrect, and both are on full display in the debate over two recent Supreme Court decisions: Citizens United v. FEC and Ledbetter v. Goodyear Tire & Rubber Co.[2] According to liberal critics, the Citizens United decision is “the logical expression of an activist pro-corporatist jurisprudence” and Ledbetter was part of a “campaign to restrict, rewrite, and squash anti-discrimination law.”[3] Liberal activists have labeled a majority of the justices on the Roberts Court as activists with a “rightward, pro-Big Business tilt” who have “disregarded precedents and long-held principles” in order to decide cases “in favor of large corporations.”[4]Nor is such criticism limited to the media: Senator Arlen Specter (D–PA) launched a broadside against Chief Justice Roberts and Justice Alito on the floor of the Senate, unfairly and illegitimately portraying them as having “cavalierly set aside” the assurances they gave in their confirmation hearings of “fidelity to the law” and the principle of stare decisis in the Citizens United decision.[5] Specter’s statement demonstrates ignorance of the long line of precedents overturning bans on independent expenditures and little comprehension of the Supreme Court’s duty to enforce the Constitution and prevent Congress from abrogating the liberties of citizens through legislation. The Senator seems to believe that the Court should routinely rubber stamp whatever legislation Congress passes as long as it has had “extensive congressional hearings”—as if that justifies taking away fundamental rights like free speech that are guaranteed by the First Amendment.Contrary to the cacophony of liberal criticism, the majority in both cases followed the original meaning of the Constitution or the applicable statute and did not engage in judicial activism. Indeed, to have ruled otherwise in these cases would have required the justices to ignore the language of congressional statutes and the original meaning of the First Amendment, and would have further ruptured a long line of precedent. Liberals, however, would have the Court do all these things in the name of their desired policy outcomes—actions that would constitute the very definition of judicial activism.Citizens UnitedIn Citizens United v. FEC, the Supreme Court threw out the federal ban on independent political expenditures by corporations and unions because, by effectively limiting speech, such a ban violates the First Amendment. Liberal activists and the mainstream media were swift to attack the decision as bad policy. For example, one article about the case decries the fact that it has “opened the floodgates of unlimited corporate spending in federal elections.”[6] Another discusses the terrible consequences of spending in elections by “the pharmaceutical companies, the insurance companies, Big Oil, or what President Eisenhower called the ‘military-industrial complex.’”[7]But these policy assessments are quite skewed. First, one would never know from reading these liberal critiques that the Court’s decision applied equally to labor unions as well as corporations—a key omission which distorts the scope of the decision and the lack of even incidental favoritism for groups which could be characterized as favoring any particular political party. Perhaps relying on this mischaracterization and the public’s lack of knowledge about the applicability of Citizens United to unions, liberals in Congress have proposed legislation in the form of the so-called DISCLOSE Act,[8] which purports to “correct” Citizens United by imposing significant new restrictions on corporations, while exempting unions from many of the act’s more onerous, speech-restrictive requirements.[9]Second, the depiction of multinational or “military industrial complex” corporations belies the actual facts of the case, and the genuine diversity of corporations whose free speech rights the Court vindicated. Just take the named party, Citizens United, a small, issue-oriented organization that will never be mistaken for, say, BP. Citizens United has an annual budget of only $12 million and most of its funds are donations from individuals.[10] It is a grass roots advocacy organization dedicated to reasserting “the traditional American values of limited government, freedom of enterprise, strong families, and national sovereignty and security.” The organization’s objective is “to restore the founding fathers’ vision of a free nation, guided by the honesty, common sense, and good will of its citizens.”[11]By characterizing corporations exclusively as for-profit organizations, detractors fail to recognize that Americans tend to influence the political process by joining together with other like-minded individuals—something that the First Amendment, through its protection of associational rights, protects. Many times, these groups of like-minded people adopt corporate forms to take advantage of limited liability or tax advantages. Even the archetype of modern grassroots movements—the tea partiers—have adopted, through organizations like Tea Party Patriots, non-profit corporate operating structures. The fact that individuals who seek to influence the political process take a corporate form for the purposes of limited liability should not affect their ability to speak on issues of public concern. Indeed, the First Amendment does not permit government to restrict speech rights in exchange for adopting a corporate form. Were government able to do so, it could then restrict political speech of news agencies, which are almost universally corporations.Leaving aside the misguided policy arguments made by opponents, the more serious criticism of the decision comes from those who claim that the five justices in the majority[12] were engaging in judicial activism. Specifically, these critics claim Citizens United is activist because the Court declared a federal statute unconstitutional and overturned prior precedent, Austin v. Michigan State Chamber of Commerce,[13] which had upheld a state ban on independent expenditures by a nonprofit trade association, and part of McConnell v. FEC,[14] which had upheld the “electioneering communications” provision of the Bipartisan Campaign Reform Act (a provision expanding the independent expenditure ban).However, those criticisms ignore the fact that the Austin decision on independent expenditures and the part of the McConnell decision on electioneering communications were outliers in the Court’s First Amendment jurisprudence. The majority’s actions in Citizens United did not constitute judicial activism, but rather upheld basic First Amendment protections against unlawful encroachments by Congress. It is not judicial activism when a judge overturns two relatively recent decisions that were wrongly decided and that are in conflict with a long line of other precedents—particularly if the decision corrects constitutional errors. If this were not true, then the same critics of the Citizens United decision must believe that Plessy v. Ferguson[15] should still be the law of the land today and racial segregation should still be considered “constitutional” since under their slanted and sophomoric definition, the justices of the Supreme Court engaged in judicial “activism” in Brown v. Board of Education.[16] After all, the justices in Brown overturned Plessy and repudiated the “separate but equal” doctrine as unconstitutional—and arguably did so when they decided subsequent cases striking down similar policies by recalcitrant jurisdictions that acted contrary to Brown and its progeny.The 100-Year Lie: Independent Expenditure Law Before AustinThe claims by some, including President Obama, that the Supreme Court’s Citizens United decision overturned 100 years of precedent are simply untrue. While Congress implemented a statutory ban on direct corporate contributions to federal candidates in 1907, a ban that Citizens United did not disturb, it did not impose a ban on independent political expenditures by corporations and unions until 1947 when it passed the Labor Management Relations Act.[17] Congress overrode President Truman’s veto of the Act even though he “warned that the expenditure ban was a ‘dangerous intrusion on free speech.’”[18] The constitutionality of such a ban was not reviewed by the Supreme Court for almost three decades after its passage, although the Court expressed its doubts about the act in more than one case.As Justice Kennedy’s majority opinion in Citizens United points out, that question was in the background of a case considered in 1948 in which a labor union endorsed a congressional candidate in its weekly periodical. The Court did not reach the constitutional question because it held that the statute did not cover the publication, but it “stated that ‘the gravest doubt would arise in our minds as to [the federal expenditure prohibition’s] constitutionality’ if it were construed to suppress that writing.”[19] Four justices said they would have reached the constitutional question and held the expenditure ban unconstitutional, including staunch liberal Justices Hugo Black and William Douglas.In two other later cases in 1957 and 1972, the Supreme Court refused to decide the constitutional issue, remanding one case on statutory grounds after which a jury promptly found the defendant not guilty of violating the statutory ban, and overturning another conviction under the ban again on statutory grounds without reaching the constitutional issue.[20] But in the 1957 case, three justices dissented, “arguing that the Court should have reached the constitutional question and the ban on independent expenditures was unconstitutional.”[21] The dissenters included Chief Justice Earl Warren, probably the most renowned liberal justice of the last century.The seminal decision on campaign finance reform is without question Buckley v. Valeo,[22] the case in which the Court considered various challenges to the Federal Election Campaign Act of 1971. In addition to placing limits on direct contributions to federal candidates, this legislation also enacted a new independent expenditure ban that applied to individuals as well as associations, partnerships, corporations, and unions. The ban prohibited spending more than $1,000 “relative to a clearly identified candidate…advocating the election or defeat of such candidate.”[23] Although the Court upheld the limits on direct contributions because the governmental interest in the “prevention of corruption and the appearance of corruption” was sufficiently important, the Court threw out the limits on independent expenditures. As Justice Kennedy noted in Citizens United, the Buckley Court “explained that the potential for quid pro quo corruption distinguished direct contributions to candidates from independent expenditures. The Court emphasized that ‘the independent expenditure ceiling…fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process,’ [ ] because ‘[t]he absence of prearrangement and coordination…alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.’”[24] Only one justice dissented from this invalidation of independent expenditures limitations as a violation of the First Amendment.

The separate 1947 ban on all independent expenditures by corporations and unions codified in §441b was not considered by the Court in the Buckley decision because it was not challenged, but as Justice Kennedy correctly states, if it had been, “it could not have been squared with the reasoning and analysis of that precedent.”[25] In fact, the Buckley case cited approvingly to the dissent authored by liberal Justice Douglas in the Automobile Workers decision from 1957.[26]Only two years after the Buckley decision, the Court once again struck down an independent expenditure ban in Bellotti v. First National Bank of Boston.[27] In an opinion written by Justice Lewis Powell, the Court ruled that a Massachusetts statute prohibiting corporations from spending any funds to influence or affect voters’ opinions on referendum issues violated the First Amendment. According to the Court, there was no support “for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation…In the realm of protected speech, the legislature is constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue.”[28] In fact, Bellotti was just the latest decision from the Court recognizing that First Amendment protections extend to corporations—Justice Kennedy cites to 22 such cases in his majority opinion in Citizens United.[29] Ironically, some of these involved corporations like the New York Times Company that have condemned the majority for its affirmation of free speech rights for corporations in Citizens United.The Break with the Constitution and Precedent: AustinIt was not until Austin v. Michigan Chamber of Commerce[30] in 1990 that five justices of the Supreme Court suddenly overrode the long string of prior precedents and upheld a Michigan ban on corporate independent expenditures that supported or opposed a candidate for state office, a crime punishable as a felony. As Justice Kennedy notes, the Court simply bypassed Buckley and Bellotti as if they did not exist, creating a new justification for limiting political speech: “preventing the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”[31] What the Court did in Austin satisfies the very definition of judicial activism—it ignored the plain language of the First Amendment that “Congress shall make no law…abridging the freedom of speech” and ignored decision after prior decision recognizing the First Amendment rights of corporations and invalidating other independent expenditure bans.The Court’s Consistent Rejection of Austin’s LogicThe Supreme Court’s Buckley decision made it clear that the only basis for upholding campaign finance regulations is to prevent “corruption or the appearance of corruption” in the election process. This “exception” to the rule of free speech guaranteed by the First Amendment was applied by the Court in a series of cases after Buckley. While it is not clear that the mere appearance of corruption should be sufficient to prohibit core First Amendment speech, the Court has time and again rejected other theories justifying campaign finance regulations such as “speech equalization.” In Buckley, the government argued that it had an interest in “equalizing the relative ability of individuals and groups to influence the outcome of elections” that justified limits on independent expenditures.[32] However, as the justices said in the per curiam opinion, “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”[33] This was upheld by the Court most recently in Davis v. FEC, in which the Court noted once again that preventing corruption or the appearance of corruption is the only legitimate and compelling governmental interest for restricting campaign finances and that the Court has continuously rejected equalizing the relative ability of different individuals and groups to influence elections as justification for a cap on independent expenditures.[34] Even in McConnell, the Court noted when assessing standing that there is no legal right to have the same resources to influence the electoral process.[35]In 1985, the Court struck down a provision of the presidential public funding law that made it a criminal offense for a political committee to make an independent expenditure of more than $1,000 to further the election of a candidate receiving public financing.[36] In rejecting this ban on independent expenditures, the Court repudiated “the notion that the PACs’ form or organization or method of solicitation diminishes their entitlement to First Amendment protection. The First Amendment freedom of association is squarely implicated in these cases.”[37]Justice Breyer, a noted liberal on the Court, wrote the opinion in Colorado Republican Federal Campaign Committee v. FEC[38] in 1996 that threw out state limitations on independent expenditures by political parties, noting that such expenditures fall “within the scope of the Court’s precedents that extend First Amendment protection to independent expenditures.”[39] When Justice Breyer authored the Court’s opinion in Randall v. Sorrell in 2006 that struck down expenditure limitations imposed by Vermont on individuals running for office, he once again cited preventing corruption and its appearance as the primary justification for governmental restrictions. Breyer noted that the Court had “considered other governmental interests advanced in support of expenditure limitations. It rejected each.”[40] Breyer pointed out, in contrast to his dissent in Citizens United, that over the past thirty years, “this Court has repeatedly adhered to Buckley’s constraints, including those on expenditure limits” and cited to seven other opinions since Buckley.[41]All of these decisions that struck down various federal and state attempts to limit independent expenditures by individuals, political parties, candidates, political action committees, and associations make it very clear that the Court’s decision in Austin was truly an outlier that conflicted with the Court’s jurisprudence on independent expenditures. It was directly contrary to the leading and most significant precedent in this area—Buckley v. Valeo, a case that is constantly cited by proponents of campaign finance reform to support their views on this issue.Restoring Established Precedent: Citizens UnitedAs Justice Kennedy recognized in Citizens United, the Court was “confronted with conflicting lines of precedent: a pre-Austin line that forbids restrictions on political speech based on the speaker’s corporate identity and a post-Austin line that permits them.”[42] Yet in defending the independent expenditure ban, the Solicitor General, Elena Kagan, basically abandoned the only justification given by the five-member majority in the Austin case—the antidistortion rationale that the justices had created. As Justice Kennedy said, Kagan instead tried to claim that the ban was justified on an anticorruption rationale and a shareholder-protection interest, grounds that had never been used to justify the ban on independent expenditures. The problem, of course, with the anticorruption rationale is that such a justification—if accepted by the Court—would allow the government to “prohibit a corporation from expressing political views in media beyond those presented here.”[43]Under the rationale advanced by those critics, the Supreme Court should have upheld this federal statute and thus the ability of the government, as conceded in oral arguments by the government, to ban books or pamphlets with a political message— a claim that crystalizes the radical, anti–free speech nature of the law. Indeed, given that media corporations are only statutorily exempted from this federal law, had the Supreme Court deviated from the well-established Buckley line of cases and upheld the burdensome speech restrictions in the law, then consistent with the opinion, Congress at some future point could have eliminated the corporate media exemption, giving the government the authority to ban political speech by any media organization availing itself of a limited liability structure—from the New York Times to Fox News. Those who would seek to uphold the restrictions on non-media corporate speech while seeking broader protection for media corporations rest their claims on the argument that the press has a greater First Amendment right than individuals or associations, a view the Court has previously correctly rejected.[44]

The shareholder protection defense also asserted by the government would present the same problem, since it “would allow the government to ban the political speech even of media corporations” based on the disagreement of shareholders “with the political views the newspaper expresses.”[45] There is also no evidence of abuse by corporations that cannot be corrected by shareholders or that would justify the Court “creating” a new rationale for approving the government’s violation of the First Amendment.The reasons for correcting the outlier error that is Austin are clear, and were articulated by the Court in Citizens United. First, the Court noted that precedent should be respected “unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error.”[46] The Austin decision was poorly reasoned and “itself contravened this Court’s earlier precedents in Buckley and Bellotti.”[47] Second, the government did not even defend Austin’s antidistortion rationale, and when a party does not defend “the reasoning of a precedent, the principle of adhering to that precedent through stare decisis is diminished.”[48] Third, and most importantly, Austin relied on a faulty historical record of campaign finance laws and “abandoned First Amendment principles.”[49]The majority’s opinion in Citizens United was not an act of judicial activism; it was an act of correction, overruling a twenty-year-old case erroneously decided by five justices who clearly substituted their policy views on how elections should be conducted for the dictates of the First Amendment— contravening a long line of other precedents and the Constitution itself. Instead, the Court returned to the principles that had been established in prior decisions, particularly Buckley and Bellotti, that “the Government may not suppress political speech on the basis of the speaker’s corporate identity.”[50] As Chief Justice Roberts pointed out, the Court had “no way to avoid Citizens United’s broader constitutional argument” because the applicable statute clearly applied to Citizens United and prohibited its actions.The dissent clearly believed that Citizens United should lose the statutory and constitutional claims it was making in the case, yet those justices then bizarrely argued that “the majority should nonetheless latch on to one of them in order to avoid reaching the broader constitutional question of whether Austin remains good law… It even suggests that the Court’s failure to adopt one of these concededly meritless arguments is a sign that the majority is not ‘serious about judicial restraint.’”[51] As the Chief Justice correctly observed, this argument is based on the false premise that avoiding deciding constitutional questions “somehow trumps our obligation faithfully to interpret the law.”[52] Here, the majority faithfully interpreted the constitutional protection in the First Amendment against the abridgement of the right to speak by Congress—it would have constituted judicial activism to studiously ignore the First Amendment as the dissent urged and uphold an obviously unconstitutional federal statute.LedbetterIn Ledbetter v. Goodyear Tire & Rubber Co.,[53] the Supreme Court held that the discriminatory acts that triggered the time limit for filing a claim with the Equal Employment Opportunity Commission could only be discriminatory pay decisions, not later nondiscriminatory pay decisions that supposedly perpetuated the effects of the earlier discrimination. As another example of supposed judicial activism, one critic of the five-member majority’s opinion written by Justice Alito claimed the Court had ruled against a “woman paid less than her male peers for 20 years” because she failed to file her suit “within 180 days of the first instance of discrimination” (a statutory requirement) and even “though she had no way of learning about the discrimination until years later,”[54] a patently false claim. Another report criticizing the “infamous” and “outrageous” decision of the majority, again falsely stated that Ledbetter was unaware of the discriminatory treatment and claimed that the majority was “twisting employment and labor law to serve corporate wrongdoers.”[55]Contrary to all of these criticisms, the majority’s opinion in Ledbetter was a straightforward application of the law passed by Congress governing discrimination claims. Ledbetter, a female employee of Goodyear Tire & Rubber Company, had filed a claim with the EEOC asserting that Goodyear had discriminated against her in her job evaluations because she was a woman, actions that resulted in her receiving lower pay. She then filed a lawsuit claiming violations of the Equal Pay Act and Title VII of the Civil Rights Act of 1964. The Equal Pay Act claim was dismissed but a jury found in favor of Ledbetter’s Title VII claims.[56]

Title VII makes it unlawful to discriminate “against any individual with respect to his compensation…because of such individual’s…sex.”[57] Congress placed a statute of limitations in Title VII, requiring an employee to first file a charge with the EEOC within a specified period, either 180 or 300 days depending on the state, “after the alleged unlawful employment practice occurred.”[58] If a claim is not filed with the EEOC within that time limit, no lawsuit can be filed.[59] In trying to determine whether Ledbetter filed her lawsuit in compliance with the applicable statutory time limit, the Court emphasized “the need to identify with care the specific employment practice that is at issue.”[60] Under a disparate treatment claim such as was asserted by Ledbetter, prior precedent specified that the central element of the Court’s analysis must be determining the discriminatory intent of the defendant.[61]Ledbetter claimed her case was timely filed because she was issued discriminatory paychecks during the 180 days before her EEOC filing, and also pointed to a decision to deny her a raise that was made during that same time period. However, she did not claim that any of these occurrences were the result of intentional discriminatory treatment by Goodyear; instead, she claimed that “the paychecks were unlawful because they would have been larger if she had been evaluated in a nondiscriminatory manner prior to the EEOC charging period. Similarly, she maintains that the 1998 decision [to deny her a raise] was unlawful because it ‘carried forward’ the effects of prior, uncharged discrimination decisions.”[62] In other words, Ledbetter was claiming that her lawsuit was timely even though the intentionally discriminatory treatment (her negative job evaluation) had occurred before the charging time period because the evaluation “had continuing effects during that period.”[63] Under her view, every paycheck that gave a woman less pay would be a separate violation of Title VII, with a new statute of limitations beginning to run with each paycheck, “regardless of whether the paycheck simply implements a prior discriminatory decision made outside the limitations period.”[64]The problem with this view of the law was that it was completely contrary to the prior precedents of the Court, not that the five justices in the majority were engaging in judicial “activism” to “twist” the law in favor of a corporate defendant. The real hypocrisy in this case was demonstrated by Justice Stevens, a liberal lion celebrated by the Left, who dissented and seems to have completely changed his views of the law even though the law has not changed. This is demonstrated by one of the precedents cited by the majority as the basis for its interpretation of the statute of limitations, United Air Lines, Inc. v. Evans.[65]In United Air Lines, the Court rejected an almost identical claim because it was untimely. The plaintiff, Evans, was forced to resign because United refused to employ married flight attendants, but she did not file an EEOC claim. When she was later rehired, United refused to give her credit for her prior employment for purposes of seniority. Although Evans admitted she had not filed an EEOC claim based on the original, intentional discrimination that caused her resignation, she argued that United’s refusal to give her credit for her prior service gave “present effect to [its] past illegal act and thereby perpetuated[d] the consequences of forbidden discrimination.”[66] The Court rejected the claim as untimely in an opinion authored by none other than Justice Stevens:United was entitled to treat [Evans’ termination] as lawful after respondent failed to file a charge of discrimination within the [relevant time period]. A discriminatory act which is not made the basis for a timely charge…is merely an unfortunate event in history which has no present legal consequences.”[67]As Justice Alito pointed out in the majority opinion in Ledbetter, “t would be difficult to speak to the point more directly.”[68]The United Air Lines decision was simply one opinion out of a number of others that applied the same rule—that the intentional act of discrimination must occur within the relevant time period under Title VII and it is not sufficient that the later effects of that discrimination occur during the time period. The time in which to file with the EEOC begins to run from the date that the intentional discrimination occurs. In the majority’s opinion, Justice Alito pointed to Delaware State College v. Ricks,[69] in which a college professor’s claim was dismissed as untimely because he filed his claim after he was terminated, not when he was denied tenure, which was the act of intentional discrimination he was contesting. Justice Alito also noted Lorance v. AT&T Technologies, Inc.,[70] in which the claim of female union workers was dismissed as untimely because they filed their claim after they were laid off due to low seniority, not when the rules governing seniority were changed in the union contract, which was the specific act that the women were claiming was intentionally discriminatory. As Justice Alito wrote, the Court held in these prior cases “that the EEOC charging period ran from the time when the discrete act of alleged intentional discrimination occurred, not from the date when the effects of this practice were felt.”[71]After the Lorance decision, Congress actually amended Title VII to cover the specific seniority problem in that case, allowing liability from an intentionally discriminatory seniority system both at the time of its adoption and at the time of its application.[72] But it did not amend the law to change the results of the Delaware State College or United Air Lines decisions. Critics of the Ledbetter decision apparently wanted the Court to overlook these prior precedents, the legislative history of the law, and the law’s statutory text, in order to change the results of the case for a sympathetic plaintiff.Ledbetter’s attempt in her case to circumvent the intent requirement and the time limit imposed by Congress in the statute was “unsound.” As Justice Alito noted, this would shift intent from one act (the act that consummates the discriminatory employment practice) to a later act that was not performed with bias or discriminatory motive. The effect of this shift would be to impose liability “in the absence of the requisite intent.”[73] It would also distort the integrated, multi-step enforcement process of Title VII. Furthermore, such a holding would have violated the Court’s stated desire to be respectful of the legislative process that crafted this statute and “give effect to the statute as enacted.”[74]Ledbetter also claimed that another Supreme Court case required different treatment of a pay claim. Bazemore v. Friday involved employees of a state agency that originally segregated its employees into “a white branch” and “a Negro branch,” with the latter receiving less pay.[75] In 1965, the branches were combined but the disparate pay continued. After Title VII was amended in 1972 to cover public employees, the black employees sued over the dual pay disparity. The Court held that those claims were not time barred because the state agency had adopted a facially discriminatory pay structure that continued after 1972. Therefore, “the employer engages in intentional discrimination whenever it issues a check to one of these disfavored employees. An employer that adopts and intentionally retains such a pay structure can surely be regarded as intending to discriminate on the basis of race as long as the structure is used.”[76]But the situation in Bazemore was distinctly different than the situation in Ledbetter: “Bazemore stands for the proposition that an employer violates Title VII and triggers a new EEOC charging period whenever the employer issues paychecks using a discriminatory pay structure. But a new Title VII violation does not occur and a new charging period is not triggered when an employer issues paychecks pursuant to a system that is facially nondiscriminatory and neutrally applied. The fact that precharging period discrimination adversely affects the calculation of a neutral factor…that is used in determining future pay does not mean that each new paycheck constitutes a new violation and restarts the EEOC charging period.”[77] There was no evidence (and no claim) that Goodyear had adopted its pay system in order to discriminate on the basis of sex, so the Bazemore rationale did not apply to the Ledbetter case.The claims made by critics that Ledbetter did not know about the discrimination and that the limitation should have been stayed are also not in accord with the facts in that case. The Court noted in its decision that it was not addressing the discovery issue because Ledbetter did “not argue that such a rule would change the outcome in her case.”[78] In other words, she made no claim that she did not know about the discrimination; in fact, her claims of sex discrimination “turned principally on the misconduct of a single Goodyear supervisor, who, Ledbetter testified, retaliated against her when she rejected his sexual advances during the early 1980’s and did so again in the mid-1990’s when he falsified deficiency reports about her work.”[79] It is obvious that Ledbetter could not argue that the statute of limitations for filing an EEOC claim should be stayed because she clearly knew about the unwelcome sexual advances and the deficiency reports being filed by her supervisor. The fact that the supervisor who was accused of wrongdoing had died by the time this case went to trial also provides a good example of why statutes of limitation are important—if Ledbetter had filed her claim in accordance with the time limit in the statute, the supervisor’s testimony would have been available to the EEOC and the courts. Such limitation periods put defendants on notice of claims and prevent stale claims from being brought at a time when witnesses are no longer available or documentary evidence has been destroyed under normal document retention policies.Many of Ledbetter’s arguments in this case were “policy arguments in favor of giving the alleged victims of pay discrimination more time before they are required to file a charge with the EEOC.”[80] But those policy arguments were being made to the wrong branch of the federal government. It was Congress, not the Court, which chose a very short deadline for filing employment discrimination claims with the EEOC. Critics who did not like that short deadline apparently wanted the Court to “twist” Title VII to write that deadline out of the statute. Because the majority refused to do so, but instead applied the statute as written, they are supposedly “activist” judges who were defying Congress in favor of a corporate defendant.These charges simply cannot be supported by what happened in this case. The decision and its legislative aftermath actually demonstrate the best features of the U.S. constitutional system and the separation of powers designed and built into it by the Framers. The Supreme Court followed stare decisis and its own precedents and interpreted Title VII’s statute of limitations as it was promulgated by Congress. Congress did not like the result and, listening to the policy (as opposed to legal) arguments made in this case, changed the law with the Lilly Ledbetter Fair Pay Act of 2009. This act amended the 180-day statute of limitations for filing a pay discrimination claim with the EEOC to make it clear that liability would accrue (and the time limit would begin to run) not just when the discriminatory employment practice occurs, but with respect to discriminatory compensation:[W]hen a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practices, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wage, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.[81]ConclusionFollowing President Obama’s unseemly (and inaccurate) attack on the Supreme Court’s ruling in Citizens United during this year’s State of the Union address, a chorus of liberals, including Obama’s press secretary, congressional Democrats, and a number of liberal activist organizations, have mimicked the claim that the Supreme Court is controlled by “conservative activists.” This most recent attack comes on the heels of similar criticism that has been made about the Court’s ruling in the Ledbetter case.But the facts of these cases and an examination of the legal analysis applied by the justices in their majority opinions show that there is no merit to any of these claims. These criticisms are actually evidence of the vulnerability to the charge of Left-wing activism that has been properly and correctly leveled against some liberal federal judges for refusing to follow the law and imposing their social and ideological views in the courtroom. By ascribing the “activist” label to conservative judges, liberals appear to be attempting to damage the public image of the Supreme Court and specific justices. These attacks are also clearly an attempt to propagate a moral equivalency with liberal judges who are, in actuality, activists. It is unfair to the justices on the Court who participated in these decisions and is a cynical and derisive tactic that injures the public’s faith and confidence in the judicial system.—Robert Alt is the Deputy Director of, and Hans A. von Spakovsky is a Senior Legal Fellow in, the Center for Legal & Judicial Studies at the Heritage Foundation.

I'm an NRA Life Member and certified instructor and so am not usually one to argue against them. They, however, have made a Faustian bargain with Democratic lawmakers who usually seek to do them ill to exempt themselves from the "Disclose" bill soon to be voted on in the house, a bill that looks to me like it's narrowly tailored to prevent some types of political speech while leaving other unhindered.

I think the NRA's stance is tremendously short sighted. As I put it elsewhere, the good news is that the NRA struck a deal where the 3rd amendment is concerned, too, and such won't have to quarter troops at their corporate headquarters. The bad news is that the rest of us need to make up the guest bed. An article that speaks to a related sentiment follows:

The cynical decision this week by House Democrats to exempt the National Rifle Association from the latest campaign finance regulatory scheme is itself a public disclosure. It reveals the true purpose of the perversely named Disclose Act (H.R. 5175): namely, to silence congressional critics in the 2010 elections.

The NRA "carve-out" reaffirms the wisdom of the First Amendment's precise language: "Congress shall make no law . . . abridging the freedom of speech."

Congress can't help itself. Since 1798, with the Alien and Sedition Acts, incumbent politicians have yearned for legal duct tape for their opponents' mouths. The Disclose Act is a doozy of a muzzle.

For its part, the NRA -- on whose board of directors I serve -- rather than holding steadfastly to its historic principles of defending the Constitution and continuing its noble fight against government regulation of political speech instead opted for a political deal borne of self-interest in exchange for "neutrality" from the legislation's requirements. In doing so, the NRA has, sadly, affirmed the notion held by congressional Democrats (and some Republicans), liberal activists, the media establishment and, at least for now, a minority on the Supreme Court that First Amendment protections are subject to negotiation. The Second Amendment surely cannot be far behind.

Since the court's January decision in Citizens United v. Federal Election Commission that corporations cannot be constitutionally prohibited from making independent candidate-related expenditures, Democrats have been hyperventilating at the notion that corporations might spend millions of dollars criticizing them. To foreclose that possibility, the Disclose Act would impose onerous and complicated "disclosure" restrictions on organizations that dare to engage in constitutionally protected political speech and on corporations that dare to contribute to such organizations.

Democrats would effectively neuter the court's decision by requiring the names of multiple donors to be recited in ads (thus shrinking the time spent on actual speech), requiring the CEO of a corporate donor to personally appear in campaign-related ads, expanding the coverage period to virtually the entire election year, and including myriad other rules that the NRA described last month as "byzantine" and an "arbitrary patchwork of reporting and disclosure requirements."

The NRA's wheel-squeaking bought it an exemption from those requirements. Tea Party organizations arising spontaneously since 2009? Out of luck. Online organizations with large e-mail followings but perhaps no formal dues structure? Forget it.

Receiving less attention than the NRA "carve-out" but no less cynical is the bill's sop to organized labor: Aggregate contributions of $600 or more would be disclosed. Why start at $600? Why not $200 or, say, $500? Because most union members' dues aggregate less than $600 in a calendar year and thus members' contributions to labor's campaign-related spending wouldn't need to be disclosed . . . even to the union members whose dues are spent for political purposes.

In Citizens United, the court held that the First Amendment doesn't permit Congress to treat different corporations differently; that the protections afforded political speech arise from the Constitution, not Congress. Otherwise, it would be tantamount to a congressional power to license the speech of some while denying it to others.

The NRA carve-out is a clear example of a congressional speech license.

The ostensible purpose of the legislation is benign "disclosure," upheld in Citizens United as permissible under the First Amendment. Even conservative Justice Antonin Scalia has expressed skepticism about the constitutional infirmity of disclosure requirements in another case argued this term; Scalia intoned in oral argument that "running a democracy takes a certain amount of civic courage."

That's true. Indeed, the law upheld in Citizens United requires all donors to candidate-related expenditures to be publicly disclosed to the FEC in a timely manner.

But the Disclose Act isn't really intended to elicit information not currently required by law. The act serves notice on certain speakers that their involvement in the political process will exact a high price of regulation, penalty and notoriety, using disclosure and reporting as a subterfuge to chill their political speech and association.

It is only disclosure, say the authors. And box-cutters are only handy household tools . . . until they are used by terrorists to crash airplanes.

This is not just "disclosure." It is a scheme hatched by political insiders to eradicate disfavored speech. There is no room under the First Amendment for Congress to make deals on political speech, whether with the NRA or anyone else.

The writer is a partner at Foley & Lardner who works in campaign finance law and is a member of the NRA's board of directors.

Only in the Through the Looking-Glass world inside the Beltway could the DISCLOSE Act — a piece of legislation meticulously crafted to protect Washington’s two most powerful special-interest groups — be presented to the public as a courageous stand against special-interest groups. A vote on the bill scheduled for today was canceled after the Blue Dog Democrats and the Congressional Black Caucus objected, for very different reasons, but the bill’s backers promise to bring it back. They shouldn’t: Though it is cloaked in populist rhetoric, the DISCLOSE Act is, like every other piece of campaign-finance legislation, a cynical bid to secure the interests of those two powerful constituencies — incumbents and the media.

The DISCLOSE Act is a project of Rep. Chris Van Hollen (D., Md.), head of the Democratic Congressional Campaign Committee, and Sen. Charles Schumer (D., N.Y.), the most reliably anti-corporate Democrat that Wall Street money can buy. The bill is the Democrats’ response to the Supreme Court’s decision in Citizens United v. Federal Election Commission, which held that the First Amendment protects the right of an activist group to distribute a film critical of Hillary Clinton during her presidential campaign, even though some of the money for the project had come from businesses and non-profit corporations, the free-speech rights of which previously had been restricted by the McCain-Feingold Act. Citizens United restored the right of citizens to raise their voices — and money — for or against the candidate or cause of their choice, regardless of whether those citizens happen to be organized as a business or a group of businesses, a nonprofit corporation, etc. One would think that such a decision would be cause for general rejoicing in a country where free speech is the first item on the Bill of Rights. In reality, the decision sent incumbents into a panic; as it happens, most of the incumbents are Democrats this time around, but bear in mind that this mess was started by a piece of legislation named for the Republicans’ last presidential nominee.

The DISCLOSE Act is, among other things, a petty piece of corruption. It selectively applies rules about how political communications are designed and financed, and does so in such a way as to restrict the ability of independent citizens’ groups to bring their grievances to the public square. For instance, if a coalition of small banks wanted to put together an advertising campaign to go after the bipartisan architects of the bailouts, their efforts would be hobbled by onerous rules about what appears in the ads and how they are paid for. Worse, DISCLOSE goes far beyond McCain-Feingold, restricting political speech that was perfectly legal even before the Citizens United decision. By redefining thousands of businesses and non-profits as “government contractors,” it bans them from so much as mentioning an incumbent or candidate from three months before the primaries all the way through the general election — four months before the primaries in the case of presidential elections. That’s a six-month media blackout for congressional elections and more than a year in presidential races.

Advertised as an effort to restrict the influence of special-interest groups, the DISCLOSE Act in fact contains a special exemption for the special-interest group par excellence, the National Rifle Association, whose opposition the Democrats did not believe they could withstand. So while other gun-rights organizations, such as the Second Amendment Sisters, would be caught up in the legislation’s cumbrous and invasive disclosure requirements, the NRA would be exempt from the worst of them. The exemptions would cover AARP as well, while smaller organizations — or large ones formed more recently — would be disadvantaged by the rules. When Chuck Schumer teams up with the NRA, something strange is afoot. (It was the NRA carve-out, and not the bill’s attack on free speech, that drew the Congressional Black Caucus’s objections.)

The bill also includes exemptions for the union bosses who did so much to put Barack Obama in the White House and Nancy Pelosi in the speaker’s chair. Under DISCLOSE, contributions raised in aggregate — from union dues, to take one non-coincidental example — would only have to be disclosed when an individual’s annual contributions exceed $600. Most union members see slightly less than that expropriated from their wages annually. As campaign-finance lawyer Cleta Mitchell observes in the Washington Post, this means that in most cases union members’ “contributions to labor’s campaign-related spending wouldn’t need to be disclosed . . . even to the union members whose dues are spent for political purposes.” In somebody’s imagination, that strange arrangement constitutes transparency.

But this is not really about the NRA or the AARP or the SEIU. This is mainly about defending the seats of incumbents and, secondarily, protecting the influence of the mainstream media.

There are three main kinds of capital in politics: access, publicity, and money. Incumbents, firmly ensconced in positions to which they are reelected at an astonishing rate (94 percent of House incumbents were reelected in the 2008 elections), control the access. The media controls the publicity. And that leaves money — including the money needed to circulate political criticism — as the only area in which those outside the cozy nexus of politics and press have a reasonable chance to compete. Thus, campaign-finance “reformers” have been trying to diminish that source of competition for years. When independent political voices are muffled, that leaves incumbents of both parties in a relatively strong position: They already control ballot access, districting, and the Federal Election Commission. Restricting independent critics leaves the field to the two parties’ incumbents and their media surrogates. You do not want political incumbents to dominate the electoral process for the same reason you don’t want the CEO to be chairman of the executive-compensation committee: There is too much opportunity for self-dealing.

Likewise, the restriction of independents groups’ ability to craft and distribute political communications leaves the establishment media in a stronger position; though the foundation of its historical oligopoly is crumbling under the pressure of new-media competitors, the old media is determined to cling to what advantages remain to it. The legacy press resents the ability of independent groups to advance criticisms and narratives that have not been vetted in editorial offices in Washington and New York, and it jealously guards its role as public-opinion kingmaker. It is no surprise to find the DISCLOSE Act being endorsed by the likes of the New York Times.

The DISCLOSE Act goes far beyond disclosure. Too far, in fact. A bill simply requiring disclosure of contributors to electoral and issue-advocacy campaigns — timely disclosure, to be published on the FEC’s website for public scrutiny — would provide the transparency voters need without the free-speech restrictions we abhor. But such a bill would do little or nothing to advance the interests of Washington’s biggest power players, and so the Democrats propose to resuscitate the DISCLOSE Act instead, if they can cut a deal with the Blue Dogs and the Black Caucus. The health-care debate proved that the Blue Dogs can be bought off, and the Black Causus probably will not stand up to Pelosi and Schumer for very long. It will be up to Republicans to stop this bill, on constitutional and moral grounds, and they should do so.

I would like to extend some discussion here, but begin with some material from the Immigration thread. Recent discussion there has been about a literal reading of the Constitution vs. an originalist (or original intent of the Framers) reading of the Constitution. If you gents will indulge me, I would like to formulate a discussion of sorts here. It will necessitate a series of posts from me, hopefully with at least a few responses per post.

First, if I may, based on my understanding of original intent, and many posts in the Immigration thread and in other threads here (this one and the American Creed), is it safe for me to assume that all of the supporters of original intent (body-by Guinness; Guro; GM, etc.) agree

a) that the Framers of the Bill of Rights intended to extend the rights therein (speech; bear arms; etc. etc.) to individuals, and as such that these rights should not be considered group rights (as, for example, the liberal members of the Supreme Court understand the Second Amendment).b) that the intent of the Framers of the 14th Amendment intended to guarantee these rights to former slaves and their offspring.

BD, On your first point, literal reading vs. original intent, I think for me it is both, with the exact words coming first and the original intent and context used to discern meaning of the actual words. For example, if a clause used to grant rights to slave families is later used to promote lawbreaking and break down borders, I would still start with the actual reading. If it only said 'all persons born here' then they are in, until amended. But if it follows with phrases of contradiction like under the jurisdiction or state in which they would reside, I would try to look very very closely at the actual words and meaning before drawing an absurd, unintended conclusion.

On the second point, I don't follow you that right extended to individuals are not granted also to groups of individuals, a well-regulated militia bearing arms or a group of Bush-haters pooling their resources to buy a full page calling the commanding general of our forces in time of war "General Betray Us". It is an individual right and a group right by extension because the individuals in the group have that freedom of expression no matter how ugly the substance.

Corporations are not freed slaves. Probably didn't need to stop and wait for us on that one.

As corporations are not freed slaves, is it safe to assume that the Framers of both the Bill of Rights and the 14th amendments did not originally intend corporations to have the rights guaranteed to indviduals. And, if this is true, can we agree that a Supreme Court case that were to give these rights to corporations was an activist court, that is going outside its constitutional limits?

Let's say that I have half of enough money to buy a political ad and let's say (hypothetically) that I have a close friend named bigdog who also has half of enough money to buy a political ad and that both of us feel very strongly about some political issue, let's say we oppose the Vietnam war, and let's say that each of us individually has the constitutionally protected right of freedom of political speech, but to do this together we had to form a C-corp, an S-corp, an LLP, and LLC, a 501c3 or whatever the hell the rules of organization cause us to form in order to cooperate in the matter... Where in that little story did we lose our God-given right to speak out with all of our heart and all of our resources without being silenced by an unrestrained, oppressive government? Just curious.----It seems to me that any organization that government has the power to destroy should have the power to speak out against such an action. Where in the literal reading of: "Congress shall make no law abridging the freedom of speech" does it say organizations will have no such protection?

Let's say that I have half of enough money to buy a political ad and let's say (hypothetically) that I have a close friend named bigdog who also has half of enough money to buy a political ad and that both of us feel very strongly about some political issue, let's say we oppose the Vietnam war, and let's say that each of us individually has the constitutionally protected right of freedom of political speech, but to do this together we had to form a C-corp, an S-corp, an LLP, and LLC, a 501c3 or whatever the hell the rules of organization cause us to form in order to cooperate in the matter... Where in that little story did we lose our God-given right to speak out with all of our heart and all of our resources without being silenced by an unrestrained, oppressive government? Just curious.----It seems to me that any organization that government has the power to destroy should have the power to speak out against such an action. Where in the literal reading of: "Congress shall make no law abridging the freedom of speech" does it say organizations will have no such protection?

I didn't say organizations will have no such protection.

Very nice work, and you anticipated where I was going in this. There is nothing about the Constitutional convention, the ratification of the Bill of Rights, or the ratification of the 14th Amendment that suugests that the corporations were originally intended to have the rights and liberties afforded individuals. So, according to a stict use of original intent, corporations should not have speech rights, etc. However, a literalist approach ("Congress shall make no law...") would certainly provide for this.

As you can see, there is nothing necessarily "leftist" about a literal interpretation. There is nothing inherently "rightist" about original intent. Or vice versa. However, as I have said elsewhere, I personally find the literalist approach to be the most convincing. I also attempt to be consistent with the application, rather than using original intent when it suits the political preferences I have, the literalist when I think will help me reach a preferred position, etc.

"So, according to a strict use of original intent, corporations should not have speech rights, etc."

No, by my take on original intent or literal reading, rights don't come from government. Simultaneous with some being enumerated in the amendments it was made very clear that the enumeration of certain rights "shall not be construed to deny or disparage others". The rights of these groups of individuals aligned for business, political, religious, familial or whatever reasons would have pre-existed (IMO) and nowhere in the literal reading or original intent is the government granted the power to take them away.

"As you can see, there is nothing necessarily "leftist" about a literal interpretation."

Agree. We have to go with the words as written. As I wrote earlier, we use intent and context to help clarify the meaning of the words, as written.

One of my favorite quotes was Chief Justice Roberts during confirmation hearings. Asked what he would do "beyond loyalty to the process of law" what else he would do, he replied:

"Somebody asked me, you know, 'Are you going to be on the side of the little guy?' And you obviously want to give an immediate answer. But as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win, because my obligation is to the Constitution. That's the oath. The oath that a judge takes is not that 'I'll look out for particular interests.' . . . The oath is to uphold the Constitution and laws of the United States, and that's what I would do."

That sounds like literal reading to me and Roberts is no leftist. I think the framing of this as literal reading vs. original intent is incorrect. I think the politics of it today is literal reading with respect for original intent vs. the living breathing evolving organism view where it is appropriate to change our view of the meaning with the times or to suit our objectives. If the original document contained flaws of times like slaves being 3/5 a person or women not voting, then the literal reading and original intent was to use the amendment process to fix it, not just read new meaning into it.

"So, according to a strict use of original intent, corporations should not have speech rights, etc."

No, by my take on original intent or literal reading, rights don't come from government. Simultaneous with some being enumerated in the amendments it was made very clear that the enumeration of certain rights "shall not be construed to deny or disparage others". The rights of these groups of individuals aligned for business, political, religious, familial or whatever reasons would have pre-existed (IMO) and nowhere in the literal reading or original intent is the government granted the power to take them away.

"As you can see, there is nothing necessarily "leftist" about a literal interpretation."

Agree. We have to go with the words as written. As I wrote earlier, we use intent and context to help clarify the meaning of the words, as written.

One of my favorite quotes was Chief Justice Roberts during confirmation hearings. Asked what he would do "beyond loyalty to the process of law" what else he would do, he replied:

"Somebody asked me, you know, 'Are you going to be on the side of the little guy?' And you obviously want to give an immediate answer. But as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win, because my obligation is to the Constitution. That's the oath. The oath that a judge takes is not that 'I'll look out for particular interests.' . . . The oath is to uphold the Constitution and laws of the United States, and that's what I would do."

That sounds like literal reading to me and Roberts is no leftist. I think the framing of this as literal reading vs. original intent is incorrect. I think the politics of it today is literal reading with respect for original intent vs. the living breathing evolving organism view where it is appropriate to change our view of the meaning with the times or to suit our objectives. If the original document contained flaws of times like slaves being 3/5 a person or women not voting, then the literal reading and original intent was to use the amendment process to fix it, not just read new meaning into it.

We are largely in agreement, it would seem. As an FYI, much of my point was not directed at you, per se.

However, there are many rights that do come from government. The right to vote, for example (and one that you reference). If it takes an amendment to fix it, then it must be government granted, yes? Women, African-Americans, and 18 year olds all were given the right to vote via amendment.

"However, there are many rights that do come from government. The right to vote, for example (and one that you reference). If it takes an amendment to fix it, then it must be government granted, yes? Women, African-Americans, and 18 year olds all were given the right to vote via amendment."

Quibbling slightly just over perspective, but the right to participate in governing our own affairs is God-given or intrinsic (IMO) and the restrictions or barriers on that come from the mortals around us like our parents growing up and then from our government - sometimes for our own good, sometimes not. The amendments, seems to me, were removing the government's restrictions on those people's right to participate.

This is a drive by posting, I have not read everything in this conversation so maybe making a point which has been made before. The difference between God given rights and government given come down to this, if the rights come from gov't then gov't can take them away. If they come from God then they are intrinsic," inalienable", and no one can take them away.

Ran across this goes to original intent discussed in the current conversation.

Commerce, Necessary and Proper, and Obamacareby Jim Delaney, New York Tenth Amendment Center

Having culled through reams of often esoteric judicial analyses and rulings since ratification of the Constitution in 1787, the inescapable conclusion is that over the years the Supreme Court, Congress and the Executive have egregiously misinterpreted and progressively broadened the original and intentionally narrow meaning the Framers attached to both the Commerce Clause and the Necessary & Proper Clause. And therein lies the problem: liberal misinterpretation of these clauses has provided the national government the means to extend federal jurisdiction and control far beyond the Framers’ original intent and purpose.

Obamacare’s “individual mandate” has once again put Art 1, Sec 8, Clause 3, the Commerce Clause, front and center. And like all things Constitutional these days, even a casual observer can readily see that over the years the courts and the politicians have managed to grossly distort–indeed violate–the original meaning, intent and spirit of this clause by a litany of tortured legal argumentation and capricious social engineering justifications.

To begin with, the Commerce Clause states that the United States Congress shall have the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Not surprisingly, when linked with Art 1, Sec 8, Clause 18, aka the Necessary and Proper Clause, the federal government empowers itself to further and irresponsibly expand the original scope of the Commerce Clause

By way of background, as a direct result of the Founders’ unsettling experience with the Articles of Confederation, the Framers understood the practical need to better ensure uniformity in interstate commerce, that is to say the unencumbered “trade or exchange” of goods among the states, this in order to achieve efficient interstate commercial intercourse free of state-imposed discriminatory and retaliatory restrictions such as duties which if left unchecked could well have led to the collapse of the union itself.

As James Madison counseled, “[the federal regulation of commerce] is necessary to preserve the Union, for “without [such regulation], the Union will infallibly crumble to pieces.” Therefore, as nearly as I can deduce this effort at achieving uniformity was intended to reduce, minimize, or altogether eliminate needless and onerous state-mandated barriers and petty regulations which served to deleteriously impede the free and efficient trade or exchange of goods among the states. Period.

It is important to note that the extent of congressional jurisdiction over interstate commerce may be easily found in Clauses 5 and 9 of Art 1, Sec 9:

Clause 6: “No Preference shall be given by any Regulation of Commerceor Revenue to the Ports of one State over those of another: norshall Vessels bound to, or from, one State, be obliged to enter,clear, or pay Duties in another.

Clearly, the emphasis is on interstate duties and revenues, not upon the articles/goods traded or produced. Thus, as originally understood the power to regulate interstate trade did not mean the authority to prohibit, nor did it in any way imply the power to impose penalties for violations of the Commerce Clause.

Important to note too is that the Necessary and Proper Clause, a clause much exploited by progressives over the years, was in no way intended by the Framers to permit the federal government to assume any authority outside its clearly defined enumerated powers in Art 1, Sec 8. Simply put, our wise Framers were careful not to permit an ends justifies the means scenario. To wit, in John Marshall’s discussion of McCulloch v Maryland, he clearly drew a distinction between the proper definition of “necessary” as meaning “indispensably requisite” versus the improper definition being that of “convenient”. In other words, the federal government could not arrogate unto itself any extraordinary implementing power other than that which was clearly “indispensably requisite” in order to execute its clearly defined enumerated powers, in this case to regulate interstate commerce. In truth, a cursory examination of case law since ratification of the Constitution demonstrates how the proper definition has often been ignored, misconstrued or grossly misinterpreted by an overweaning Congress and an enabling gaggle of misguided or politically activist jurists over the years.

Having scanned applicable Federalist papers and Samuel Johnson’s Dictionary of the English Language, the latter which guided the Framers in their choice and meaning of words, it is obvious that the Constitutional meaning of “commerce” was limited to the trafficking and exchange of goods between the states from one port to another, and not at all to the regulation of INTRAstate production, manufacturing, sale, or the quality of goods/articles; that, therefore, the central and sole purpose of the Commerce Clause was to affirmatively prevent the confusing, conflicting and disorderly imposition of duties among the states. Nothing more.

Even casual examination of founding documents underscores our Framers’ clear understanding that “regulate” in 1787 meant “to make regular or normal” or “to remove impediments” to the free flow/transportation of interstate commerce. Again, it manifestly did not mean federal control or the federal imposition of regulations over the intrastate production of goods and services.

Significantly, the US v E.C. Knight Co. ruling in 1895, aka the Sugar Trust Case, asserted the states’ sphere of power in matters of commerce thusly:

1. Production is always local, and under the exclusive domain of the states2. Commerce among the states (interstate commerce) does not begin until goods commence their final movement from their state of origin to that of their destination.3. The sale of any product is merely an incident of its production and is therefore under the domain of the state because its effect on interstate commerce is merely incidental.4. Combinations or associations organized for the sale and distribution of goods are under the regulatory power of the state since the effect on interstate commerce is indirect, not direct.

Can’t get clearer than that. The ruling upheld and sharply emphasized the core restraints on federal power as intended by the 10th Amendment.

Following passage of the Interstate Commerce Act of 1887 which created the Interstate Commerce Commission, the latter which was principally intended to check railroad abuse and discrimination, the level of federal usurpation which ensued has been nothing short of mind-boggling–almost laughable if it weren’t so utterly unconstitutional. (For example, I learned that the hapless hamburger is now subject to no fewer than 41,000+ state and federal regulations, covering everything from meat production, grazing practices of cattle, conditions in the slaughterhouse, processing methods, sales to retailers, restaurants and fast-food outlets. Ketchup is another example of regulatory overreach: to be considered Grade A, it must flow no more than 9 centimeters in 30 seconds at 69 degrees Fahrenheit. Progressive insanity!)

Though Congress has cited the Commerce Clause to justify its healthcare usurpation, logic and an objective analysis of original intent clearly demonstrate that individual mandates are woefully unconstitutional. But to myopic and progressive “living constitution” adherents who care little about the original meaning of the Constitution, or, frankly, the Constitution in any of its original form, Obamacare is merely another whimsicalnecessary and proper expansion of the federal government’s implied vs enumerated powers. Where are our Founders when they are so sorely needed?! Where are our uncorrupted constitutional scholars and jurists?!

Get the New Book Today!

With particular respect to Obamacare, I couldn’t find one single court ruling in the history of the United States which remotely endorsed the right of the federal government to mandate that every person purchase a product or service or be fined for not doing so. Not one! And though it’s difficult to imagine that even a liberal Supreme Court could clear-headedly and in good conscience rule in favor of this mandate, I wouldn’t underestimate the corrosive influence of judicial activism and congressional overreach which have characterized the rule of law in these United States over the last 100 years. And should the Supreme Court uphold Obamacare, which is more likely than not, then Americans must carefully recall and take to heart these words in the Declaration of Independence:“…But when the long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government [or abusive power], and to provide new guards for their future security.” Amen to that!

So, if the courts fail to restore constitutional governance, and the chances are better than even they won’t, what’s the answer to this unrestrained federal overreach? Very simply, we must take action to restore the sovereignty of “we the people”!!! Our merely waiting for the next election to throw the bums out and to replace them with what will likely be only slightly less progressively tainted legislators sounds good, but will accomplish nothing. Inescapably, state nullification action–with teeth–in combination with widespread civil disobedience are most likely the only way to restore constitutional order. It’s now or never…

**************

(“…whensoever the General Government assumes undelegated powers, its acts areunauthoritative, void, and of no force; where powers are assumed by the federal government which have not been delegated by the Constitution, a nullification of the act is the rightful remedy.” James Madison, & Thomas Jefferson, Kentucky & Virginia Resolutions, 1798)

(“The true key for the construction of everything doubtful in a law is the intention of the law-makers. This is most safely gathered from the words, but may be sought also in extraneous circumstances provided they do not contradict the express words of the law.” Thomas Jefferson, ltr to Albert Gallatin, 1808)

(“The court will almost assuredly resort to the great defense shield of denial known as ’stare decisis’ as a clever way of protecting the courts own judicial malpractice from scrutiny while at the same time leaving its vast centralization of power in Congress intact.” P.A. Madison, Federalist Blog, 2010)

Jim Delaney writes for the New York Tenth Amendment Center from Rochester-Greece, and maintains the blog, Opinerlog.

Freki nailed it: "if the rights come from gov't then gov't can take them away."

Is murder wrong because of an ordinance or statute or was it wrong - intrinsically - before the law was passed? The Declaration of Independence says some truths are self-evident and certain rights are endowed by the Creator; the constitution lays out that government powers are limited and enumerated (for congress they are in Article 1 Section 8 ) while rights are pre-existing and unenumerated.

The rights of freedom and consent of the governed do not come from government in my view. Governments are more in the business of taking our freedoms away, as with the King example and his false authority over his subjects.

But the US government is "by the people, for the people" so it isn't really the same proposition as the king taking rights. Murder was only legally punishable with the creation of government. It might have made people mad, and been a part of the "state of nature" but it was punished in the way that we think of it before the creation of the state. Likewise, there is no reason for God to have created to right to participate in our governance without the creation of a government.

We are arguing starting points here from which rights do, or do not, flow. I'm agnostic to the point most religious folk call me atheist and so have trouble with constructs that invoke a supreme being. With that said, I want government to pretty much leave me the frack alone and thus for utilitarian, pragmatic, and selfish reasons embrace a political ethos from which I'm most likely to derive as little interference from the state as attainable. If natural rights or whatever you care to label it take me there, that's fine by me.

Plenty of less pleasant first premises to be had. BD already alluded to the Hobbesian one, we got Mao's "power flows from the barrel of a gun," we have Marx's "from each according to his ability, to each according to his needs," to various religious schemes that would have the common folk prostrating themselves before the edicts of an imaginary omnipotent being as conveyed by well rewarded intermediaries, to the whole divine right of this or that despot crowd, to kleptocracies, oligarchies, kakistocracies, or alloys made of any of the above. There are a lot of schemas available from which the connivers, predators, lame idealists, and con persons among us can chose to create systems of governance conducive to their ends. My goal is to foil 'em and so select first principles in which despotic growths will have a hard time taking root.

We could endlessly argue from what source the right to live a life unencumbered by a malevolent government springs; philosophers haven't settled any existential question of this scope so there's little chance we'll arrive at some sort of universal agreement. The philosophes among the framers knew this and so labored instead to set up system under which despotic impulses would have a hard time coalescing. Can't defending and bulwarking that accomplishment be an end unto itself? I'll grudgingly participate in a discussion seeking to whittle down principles of governance to their root, but have little doubt that the frames from which we view this task leave little likelihood of achieving anything close to unanimity. As such I'd much rather participate in discussions examining how best to cleave back odious government than discuss the philosophical underpinnings that lead us to pick up the machete.

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." - 9th Amendment

How can people retain other rights if they weren't already there? Where did those rights come from? God-given to me is an expression for pre-existing. I'm happy to call them intrinsic rights, natural rights, moral rights, or inalienable rights. Government can take them away like a thief, rapist or murderer can take, but you still started with those rights of freedom, I believe.

"But the US government is "by the people, for the people" so it isn't really the same proposition as the king taking rights."

- Only if a minority takes away rights from the majority or a majority takes rights from the minority do I see a similarity. When we rob Peter to pay Paul and only get Paul's consent, there is a similarity. To the extent that one congress passes programs that cannot be undone by a later one, it fails the test of consent of the governed IMO. We didn't hire the bums to take away our rights and the founders were certainly trying to make it harder to do that.

"...no reason for God to have created the right to participate in our governance without the creation of a government."

- I am pro-government, up to roughly the limits set forth in the constitution. Like BD wrote earlier, I don't think we are that far apart.

Government is simply human farming, the harvesting of taxes. Here in America there are theoretical feedbacks that prevent that farming from becoming to exploitive. I say theoretical because they haven't been getting used- or have been "preceeduraly modified" out of use. Individuals acting together is what made this country great, at various time individuals decide to form a union, or a new party-maybe transform and old one? Various of these originally necessary actions have gotten coopted and tranformed over the years into something other than what was intended.

We now sit in an interesting time. A major political party is going thru a transformation, So is the economy and America is also deciding on its future charachter. I am doing my part to push it in a direction I prefer since I definately do not want it to go down the Central managed road of big government, which is where it will go. I have been in a kind of watchful apathy for years, but I am feeling the necessity of doing something, and some thing are moving in the right direction. To get it moving there a lot of the silent majority has to start pushing too. I do my thing and wonder who else is going in the same general direction and hope there are enough.

As corporations are not freed slaves, is it safe to assume that the Framers of both the Bill of Rights and the 14th amendments did not originally intend corporations to have the rights guaranteed to indviduals. And, if this is true, can we agree that a Supreme Court case that were to give these rights to corporations was an activist court, that is going outside its constitutional limits?

Is the New York Times a coporation? Yes. Does the New York Times enjoy constitutionally protected speech? Given the role of newspapers, pampleteers in the revolution, do you think the intent of the founders was to provide such protections to both for profit and non-profit entities? I think their intent is quite clear.

As corporations are not freed slaves, is it safe to assume that the Framers of both the Bill of Rights and the 14th amendments did not originally intend corporations to have the rights guaranteed to indviduals. And, if this is true, can we agree that a Supreme Court case that were to give these rights to corporations was an activist court, that is going outside its constitutional limits?

Is the New York Times a coporation? Yes. Does the New York Times enjoy constitutionally protected speech? Given the role of newspapers, pampleteers in the revolution, do you think the intent of the founders was to provide such protections to both for profit and non-profit entities? I think their intent is quite clear.

Their was, indeed, quite clear. That is why "press" is included in the First Amendment.

"Debate in the House is unenlightening with regard to the meaning the Members ascribed to the speech and press clause and there is no record of debate in the Senate." Oh, there goes the difficulty of original intent again.

Blackstone: 'The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment.